CHARTER OF RIGHTS AND FREEDOMS
James R. Robertson
Law and Government Division
Revised 30 September 2002
TABLE OF CONTENTS
BACKGROUND AND ANALYSIS
B. The Right to Vote
1. Residency Requirements
2. Age or Mental Disabilities
4. Administrative Disqualifications
5. Limitations on the Equality
of Voting Power
C. The Right to be Qualified
for Membership in a Legislative Assembly
on Section 3 Rights
E. Other Charter Issues
1. Allocation of
2. Third-party Spending Limitations
3. Third-party Advertising
4. Last-minute Reporting of
of Political Parties
6. Listing of Party Affiliation
on the Ballot
F. Section 4 and Section
CHARTER OF RIGHTS AND FREEDOMS*
Sections 3 to 5 of the Canadian Charter of Rights and
Freedoms guarantee basic democratic rights:
the regular sitting of federal and provincial legislative
the requirement that elections be held every five
years except in times of war or insurrection.
On the whole, the democratic rights of Canadians were considered
to be relatively well protected before the Charter, and these sections have
not generated the volume of cases or the attention associated with the Charter
provisions on fundamental freedoms, legal rights or equality rights. Nonetheless,
the decisions handed down affect the basic way in which we govern ourselves,
and our conception of what a democracy should be. Moreover, unlike most
of the rights conferred by the Charter, democratic rights cannot be overridden
by the use of section 33, the “notwithstanding clause.” More recently,
section 2(b) of the Charter – freedom of expression – has been successfully
used to adjudicate other electoral issues such as political activity by
public service workers and access to broadcasting.
A number of electoral issues have been the subject of Charter
challenges resulting in judicial decisions and legislative changes. This
paper will review and summarize the main cases and issues. The paper also
discusses recent legislative reforms.**
BACKGROUND AND ANALYSIS
Section 3 of the Canadian Charter of Rights and Freedoms
deals with the democratic rights of citizens:
3. Every citizen of Canada has the right to vote
in an election of members of the House of Commons or of a legislative
assembly and to be qualified for membership therein.
Section 3 raised relatively little excitement during the
debate on the Constitution Act, 1982. Perhaps this was because democratic
rights were so accepted that the Charter appeared to be merely declaratory
of existing law. Compared to such wide‑ranging concepts as “fundamental
freedoms,” “mobility rights,” “legal rights” and “equality rights,” the
right to vote or to be qualified for membership in a legislative body seemed
established and commonplace.
Both the right to vote and the right to be qualified for
membership in a legislative assembly arise from the ancient powers of Parliament
as a high court with broad jurisdiction over electoral proceedings. From
the start, however, there seems to have been a distinction between the right
to elect and the right to be elected. According to the 1863 edition of
Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage
On the other hand, it was objected that “there is
a great difference between the right of the electors and the right of
the elected: the one is a temporary right to a place in Parliament
pro hac vice; the other is a freehold or a franchise. Who has
a right to sit in the House of Commons may be properly cognizable there;
but who has a right to choose, is a matter originally established, even
before there is a Parliament…” (p. 55)
Some limits on these rights are obviously required, and
these are usually justified under section 1 of the Charter, which states
that the rights and freedoms guaranteed in it are “subject only to such
reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society.” If totally unqualified, section 3 would
confer the right to vote and to stand for election on, for example, a two-year-old
child or a citizen convicted of treasonous behaviour on behalf of another
Canada was generally accepted to be a democratic society
– with a well-developed body of election law – prior to the passing of the
Charter. Consequently, some limits on democratic rights (such as residential
or age qualifications) may well be considered “prequalified” or inherent
in section 3 itself.
New qualifications or disqualifications, or old ones that
are too broad and offend the tests of proportionality or minimum impairment
of rights, must be justified under section 1. Nor does the “prequalification”
argument seem to apply to limits that were unevenly enforced across the
country, such as some provinces’ particularly strict limitations on public
Finally, because section 3 of the Charter gives a right
as opposed to confirming a freedom, there is also an issue of procedural
or administrative disqualification as opposed to legal disqualification.
There is an onus on the government to prevent unreasonable administrative
bars to the exercise of democratic rights. The concept of procedural disqualification
may also be extended to equality of voting power, wherein the right to vote
is clear but the value of an individual vote is arguably diminished because
of an inequitable distribution of seats.
It is not clear at this point whether the right “to be
qualified for membership” in the House of Commons or a legislative assembly
refers only to the right to be qualified to stand for membership and be
elected, or extends to the right to be seated and to continue to be qualified
as a member. If the latter, the Charter could potentially come into conflict
with the law and custom of Parliament, under which Parliament continues
to regulate its own internal affairs.
B. The Right to Vote
The general trend of Canadian electoral law has been to
extend the franchise to virtually all adult Canadian citizens. At various
times since Confederation, voting qualifications in various Canadian jurisdictions
have included criteria such as racial origin and sex. It seems unlikely,
however, that any modern Canadian court would have considered these acceptable
limitations even before the Charter was passed.
Other electoral qualifications, however, were generally
accepted in modern pre‑Charter electoral law. In general terms, the
modern limitations on voting rights, whether expressed as qualifications
or disqualifications, can be broken into the following categories:
the requirement that the elector have sufficient
nexus with the geographic area which is electing a member (such
as citizenship or residency), usually expressed as a “qualification”;
physical qualifications (such as age), expressed
as either “qualifications” or “disqualifications”;
other incapacities that affect legal status (such
as imprisonment), usually expressed as specific “disqualifications”;
procedural limitations related to registration and
the act of voting, or administrative disenfranchisement; and
limitations on the equality of voting power through,
for example, inappropriate electoral boundaries.
Court challenges have been mounted in the majority of these
1. Residency Requirements
The courts have shown a disinclination to strike down legislated
standards as to the required nexus, or link, between the voter and the community,
or the length of residence required to vote. In Re Storey
and Zazelenchuck (1984), an early case on the issue, the Saskatchewan
Court of Appeal declined to “fine‑tune” provincial residency requirements.
The Court also indicated that the conduct of other provinces was relevant,
an approach that has been taken in several later cases.
In Reference Re Yukon Election Residency Requirements,
the Yukon Minister of Justice argued that “a reasonable residency requirement
is implicit in section 3 of the Charter ... in order to reflect the geographical
distribution of political units within our Canadian federal system.” The
court found this argument “persuasive and perhaps sufficient to dispose
of the appeal,” especially considering the Yukon’s small and particularly
In the Haig case, the Supreme Court of Canada upheld
residency requirements in terms of eligibility to vote; although the case
involved referendum legislation, it is broad enough to apply to election
laws. Overall, the cases seem to indicate that a residence qualification
may well be implicit in the section 3 right to vote in an election, but
the reasonableness of the qualification will be subject to a section 1 test.
2. Age or Mental Disabilities
A clause in the Canada Elections Act disqualifying
certain persons with a mental disease was successfully challenged in the
1988 federal election by the Canadian Disability Rights Council. The section
in question disqualified people who either had their liberty restrained
or were deprived of the management of their own property by reason of mental
disease. The decision was not as sweeping as one might suppose. The case
suggests, however, that legislation disqualifying persons for mental incapacity
must specifically address their mental capacity or incapacity to vote, rather
than other characteristics or abilities. Such a test has not yet been approved
by a higher court, but it could create some interesting results if applied
to age qualifications, which have not yet been challenged. At this point,
however, the Canadian Disability Rights Council case creates as many
questions as it answers.
Bill C‑114, which received Royal Assent in May 1993,
removed the disqualification for persons limited as a result of mental disease;
however, it was unclear to what extent the persons in question would be
able to exercise their right to vote in practical terms.
Disqualification of Inmates
Although some “qualifications” may be implicit in section
3, one can assume that “disqualifications” have to meet the test of section
1. Imprisonment was the first such disability to attract serious challenges
under the Charter, but the cases have almost invariably been complicated
by procedural issues, both with respect to the remedy being sought and the
voting process itself.
In 1983, the British Columbia Supreme Court concluded that
the right to vote meant the right to make an informed electoral choice reached
through freedom of belief, conscience, opinion, expression, association
and assembly – “that is to say with complete freedom of access to the process
of discussion and interplay of ideas by which public opinion is formed.”
Because it was administratively impossible to allow inmates those freedoms
necessary for an informed and democratic choice, the denial of the vote
was found to be a reasonable limit as contemplated by section 1.
A year later, the British Columbia Court of Appeal dealt
with a provision in the British Columbia Elections Act that disqualified
from voting any person convicted of an indictable offence until he or she
had been pardoned or undergone the sentence imposed. While upholding the
earlier decision, the Court held that denying probationers the vote was
unreasonable, particularly because the primary purpose of probation is to
provide for reintegration into society.
Also in 1984, however, a Federal Court Judge considered
the Canada Elections Act and decided that the necessity of curtailing
some rights of prisoners, such as freedom of association and expression,
was no justification for curtailing the right to vote. The Federal Court
of Appeal overruled the decision, but only on the basis that the remedy
suggested was inappropriate.
Two years later, the Manitoba courts again canvassed the
issue under the pressure of an impending election. The court distinguished
between qualifications, which are inherent in the section 3 right,
and disqualifications, which must meet the section 1 test. Although
agreeing that limitations on a convict’s right to vote could serve several
valid purposes, the Court concluded that a general disqualification of inmates
did not meet the Charter test of rational connection, minimum impairment,
and proportionality of purpose. The impugned section was declared invalid,
but the trial judge refused to declare that the prisoners in question had
a right to vote and instead left the future amendment of the provincial
Elections Act to the legislature.
The Court of Appeal of Manitoba took another look at the
issue before the 1988 federal election and unanimously agreed that the trial
judge had erred in ordering the Chief Electoral Officer of Canada to enumerate
inmates. Aside from noting the immense difficulties involved in making
the standard in Manitoba different from that in other provinces, the three
members of the Court indicated in separate judgements that it would be inappropriate
for the judiciary, rather than Parliament, to make an order enfranchising
all prisoners. Interestingly, two of the judges queried whether the provision
even violated section 3, or whether “the right to vote in section 3 should
be read as reflecting that right as it had developed and was known in our
In 1992, the Ontario Court of Appeal, faced with two conflicting
decisions, struck down the federal prohibition against inmate voting. The
Court looked at three objectives that might be considered sufficiently important
to infringe on the right to vote, and decided that all three objectives,
even if taken collectively, could not justify the complete denial of prisoners’
rights to vote (Sauvé). The three objectives were:
affirming and maintaining the sanctity of the franchise
in our democracy;
In early 1991, the Federal Court of Canada had likewise
found that denying prisoners the right to vote violated section 3 of the
Charter of Rights and Freedoms. In February 1992, the Federal
Court of Appeal upheld this judgement, on the basis that the disqualification
of prisoners has more to do with the punishment of criminals than with social
measures such as ensuring that only those who can fully participate in the
democratic process are allowed to vote. Even if the objective of the legislation
were acceptable, however, the prohibition would not be demonstrably justified
as the means chosen are irrational, arbitrary and disproportionate (Belczowski).
As a result of the Belczowski and Sauvé decisions
in the Federal and Ontario Courts of Appeal, the prohibition on inmate voting
was not in effect at the time of the 1992 federal referendum on the Charlottetown
Accord. Consequently, as noted in the Report of the Chief Electoral Officer
on the Referendum, inmates were entitled to vote. The two Court judgements
had not provided guidelines as to a voting system for inmates, so administrative
mechanisms were developed by the office of the Chief Electoral Officer.
Registration took place early in the referendum period
for federal institutions. However, in provincial and territorial institutions
– where there are shorter sentences and high inmate turnover – registration
occurred in the three days prior to voting.
The office of the Chief Electoral Officer conducted an
information program to inform inmates of their right to vote and of the
procedures for exercising that right. A voter’s guide was distributed to
each inmate along with an Application for Voting, and posters were displayed
prominently in each institution. Information kits were distributed with
the help of the Elizabeth Fry and John Howard societies, and representatives
of these two organizations were invited to monitor activities during the
The place of ordinary residence for inmate electors was
defined as either the electoral district where they had lived prior to incarceration
or the residence of a spouse, parent or dependant. Where no fixed address
could be ascertained in this manner, the inmate’s place of ordinary residence
was held to be the address of the court where he or she had been sentenced
Inmate electors voted on 16 October 1992, ten days prior
to the ordinary polling day of 26 October 1992. The envelopes containing
the ballots were received, sorted and counted by scrutineers in Ottawa,
under the supervision of a Special Election Administrator appointed by the
Chief Electoral Officer, and in cooperation with the Special Returning Officer
appointed for the Ottawa voting territory under the Special Voting Rules.
Overall, 188 correctional institutions containing almost 28,000 inmates
were involved in the voting process.
The apparently successful involvement of inmate electors
in the Referendum meant that it would be difficult to argue that prisoner
disenfranchisement can be justified on the grounds of administrative necessity,
or the practical difficulties of ensuring that inmate electors can exercise
an informed vote.
In May 1993, Bill C‑114 became law, resulting
in significant changes to the Canada Elections Act. Among other
measures, Bill C‑114 removed the disqualification for prisoners
serving less than two years, who, for all practical purposes, are prisoners
serving in provincial rather than federal institutions. In the same month,
the Supreme Court of Canada affirmed both the Ontario and Federal Court
of Appeal decisions (Sauvé and Belczowski). The decision
was extremely brief, simply stating that the federal prohibition against
inmate voting was drawn too broadly and failed to meet the proportionality
test, particularly the test of minimum impairment.
In December 1995, the Federal Court Trial Division found
that the new provisions of Bill C‑114 were unconstitutional (Sauvé,
1995). The Court accepted a dual purpose, or objective, for inmate disenfranchisement:
the enhancement of civic responsibility and respect for the rule of law;
and the imposition of an additional sanction on prisoners who had committed
serious anti-social acts. The Court found that the disqualification for
inmates serving two years or more failed the requirement that the measure
chosen must result in a minimal impairment of Charter rights, and also the
requirement that the negative effects of impairing the right be proportionate
to the salutary effects.
On the minimum impairment test, the Court decided that
Parliament had not considered the alternative of a case-by-case disqualification
by the sentencing judge, possibly using criteria set by Parliament as a
guide. This would be a significantly less intrusive, and equally effective,
means of infringing a citizen’s democratic right to vote. Moreover, because
it would be more publicly visible than the current absolute bar for inmates
serving two years or more, it would enhance the social objectives involved
in inmate disenfranchisement.
As for the proportionate effect test, the Court saw little
benefit flowing from the disqualification even in theory. The argument
that prisoner disqualification enhances respect for civic responsibility
and the rule of law was not accepted because the Court found that there
was a “pervasive lack of awareness of the disqualification.” Although the
government argued that disenfranchisement served the retributive function
of criminal justice, the Court found instead that it worked against both
rehabilitation and reintegration, which are the principal goals of corrections
The fact that inmate electors had voted successfully in
the 1992 Referendum, as well as in a number of provincial elections, appeared
to influence the Court. According to figures provided at trial, more than
55% of federal prisoners in Canada were entitled to vote in provincial elections
as of 30 April 1995. The Court noted that the government could not
provide evidence of any harm flowing from the exercise of inmate voting
rights, or any arguments to justify the mixed message that society is receiving
from the conflict between federal and provincial policies relating to prisoner
On appeal, the Federal Court of Appeal ruled that although
the denial of the right to vote to persons imprisoned for two years or more
infringed section 3 of the Charter, it could be justified under section
1. The Court noted that the current provision was sufficiently different
from its predecessor – which provided for a total disenfranchisement – to
warrant a fresh consideration under section 1. The objectives of the provision
– the enhancement of civic responsibility and respect for rule of law, and
enhancement of penal sanction – are sufficiently pressing and substantial
to warrant infringement of a Charter right. The Court found that the legislation
met the rational connection test, and also impaired the right in an appropriately
minimal way. The provision aims at disenfranchising only the most serious
offenders. Its enactment followed consideration and rejection by Parliament
of the alternative of discretionary judge-imposed disenfranchisement. There
was no reason for the Court to declare invalid the balancing in which Parliament
engaged. Basing itself on electoral policy, Parliament was entitled to
add civil consequences to the criminal sanction. Finally, the legislation
achieves proportionality. Even if there is widespread public ignorance
of the provision, that does not nullify its proportionality, particularly
when it is well known to sentencing judges and defence counsel (Sauvé,
1999). This decision was appealed to the Supreme Court of Canada, which
heard the case on 10 December 2001; the judgement was reserved.
The issue of effective procedural disqualification, or
how far the state must go in positively enforcing voting rights as opposed
to not impairing them, was specifically raised by the British Columbia Court
of Appeal in 1985. Two absentee residents (not coincidentally attending
Osgoode Hall Law School) sought an order that their constitutional right
to vote was infringed because the provincial Election Act failed
to provide for absentee ballots.
The trial judge held that it was their own conduct, in
being absent from the province, that deprived them of the opportunity to
vote. The Court of Appeal disagreed, finding that where an individual is
deprived of the substance of the right to vote, it matters little whether
it is “by commission (an express statutory limitation) or by omission (the
failure of the statute to provide a mechanism to vote and thus creating
a limitation on the right to vote).”
It is difficult at this point to see where the balance
will settle with respect to the positive duty of the legislature to limit
procedural barriers to voting. Time off for voting, for example, is well
established for polling day, but not for advance or special polls. Enumeration
practices vary from province to province, placing various degrees of responsibility
on the qualified elector to ensure that his or her name is properly recorded.
For example, in 1986 the British Columbia Supreme Court
upheld a provision requiring voters registered in the wrong district to
re‑register in the new district 20 days before the election if they
wished to vote there. Moreover, when dealing with the argument that the
provision was discriminatory (because a voter not registered in any district
could apply for registration in the district of residence on election day),
the Court specifically rejected an attempt to link section 15 of the Charter
(equality rights) to section 3.
In 1982, a Saskatchewan court held that remand prisoners
had been effectively denied their right to vote, because no provisions had
been made to allow them to do so, apparently because of security considerations.
In 1986, the British Columbia Court of Appeal was faced
with the interesting question of whether the rejection, on a recount, of
ballots marked with a tick rather than a cross unreasonably deprived those
persons using a tick of their full right to vote. The Court declined to
interfere with the electoral scheme devised by the legislature.
In 1988, an administrative provision of the Canada Elections
Act which made it easier for rural voters than for urban voters to be
added to the official list on election day was challenged. The Court did
not have much difficulty in finding that section 15 did not apply. Although
sympathetic to the urban residents denied a vote, the Court declined to
propose a solution and called on the legislature to do so. Bill C-114,
however, provided for polling day registration in both rural and urban ridings.
Bill C‑114 also included a new “Schedule II – Special
Voting Rules,” which set out the special voting procedures for persons voting
outside the area in which they are normally resident. The Schedule is lengthy
and technical, but essentially covers six classes of voters:
members of the Canadian Forces;
5. Limitations on the
Equality of Voting Power
In the first round of Charter challenges, the courts did
not go from the question of whether there was a right to cast a vote to
looking at the quality of the vote cast. In 1986, however, a petitioner
in British Columbia asked for a declaration that unevenly populated electoral
districts violate the Charter.
The first question was whether the issue was even justiciable,
because it had long been considered that the apportionment of electoral
boundaries was solely within the scope of the legislatures. In particular,
disparities in urban/rural representation were defended on grounds of equity,
rather than equality. In April 1989, however, Madam Justice McLachlin granted
an order stating that the provincial election boundaries were inconsistent
with the right to vote in section 3 of the Charter.
Although section 3 does not require complete equality
of voting power, the court held that population must be the dominant consideration
in drawing electoral boundaries. Factors such as geography and regional
interests can be taken into consideration, but the ultimate goal must be
better government of the populace as a whole. Considerable leeway must
be given the legislature, and the court ought not to interfere unless it
appears that reasonable people governed by the appropriate principles could
not have set the existing boundaries.
Judge McLachlin was not unsympathetic to the factors justifying
giving a greater weight to rural votes:
special interests of rural residents;
Judge McLachlin, however, was not swayed by the U.S. jurisprudence,
which requires “near absolute equality of voting power unalloyed by other
considerations.” Noting that the development of Canadian democracy has
different roots from those of U.S. democracy, she suggested that “while
the principle of representation by population may be said to lie at the
heart of electoral apportionment in Canada, it has from the beginning been
tempered by other factors.”
Given the degree to which the principle of relative equality
of voting rights had been infringed, however, together with the lack of
justification in terms of regional or geographical concerns or short‑term
population fluctuations, the electoral boundaries could not be saved under
section 1 of the Charter.
In declaring the legislation invalid, Judge McLachlin provided
for a period of temporary validity while the legislature enacted a new and
better scheme. Noting that she had already set out the broad principles
of law on which the legislature should act, Judge McLachlin referred in
particular to the Fisher Commission, appointed in 1987 to recommend changes
to electoral boundaries based on the 1986 census. The Commission reported
to the legislature in March 1989 and recommended that population deviations
greater than 25% above or below the norm should not be tolerated. Judge
McLachlin indicated that this seemed reasonable for a province such as British
In March 1991, the Saskatchewan Court of Appeal heard a
reference on the validity of the provincial electoral boundaries set out
in the Saskatchewan Representation Act, 1989. The Court was asked
whether the variance in the number of voters per constituency or the distinction
made between urban, rural and northern constituencies violated the Charter
of Rights and Freedoms. The Electoral Boundaries Commission Act,
which established the commission recommending the boundaries in question,
had specifically required that 29 constituencies be urban, 35 be rural,
and 2 be northern.
The Court of Appeal relied largely on U.S. precedents on
the right to an equal vote, including quoting Daniel Webster as saying that
the right to vote for a representative “is every man’s portion of sovereign
power.” Although the Court agreed that absolute equality was a practical
impossibility, given the limitations inherent in a representative parliamentary
democracy, it decided that electoral systems must “strive to make each citizen’s
portion of sovereign power equal.” The difference in population between
Saskatchewan ridings was sufficiently large for the Court to find that the
existing boundaries effectively violated the section 3 right to vote, which
included the right to an equal vote.
The Court declined to fix de minimis population
deviations, or indicate the allowable population difference between ridings.
It noted that the electoral boundaries commission for the Province of Saskatchewan,
set up under the federal Electoral Boundaries Readjustment Act, had
managed to design all federal constituencies within plus or minus 5% of
the province’s mean population. This indicated that no formula for acceptable
deviancy was necessary where an electoral boundaries commission made substantial
voter equality its prime consideration.
Unlike Judge McLachlin in the B.C. case, the Saskatchewan
Court of Appeal rejected the distinction between urban and rural ridings
as a justification for population differences between various ridings.
Therefore, it concluded that the statutory requirement of 35 rural and 29 urban
ridings placed unreasonable control in the hands of non‑urban voters
which could not be justified under section 1 of the Charter. Although the
larger size and different structure of rural ridings can impose additional
time demands or communications constraints on elected representatives, these
should be dealt with by methods – such as additional staff or travel allowances
– that do not infringe on the principle of voting equality.
There was general agreement between the parties and the
Court that the extraordinary circumstances of the northern region justified
some deviation from the concept of equality of voting power with respect
to the two northern constituencies.
Because Saskatchewan was to hold an election by November
1991, the Court of Appeal decision raised some practical concerns. The
Supreme Court of Canada heard an expedited appeal at the end of April 1991,
and handed down its decision in the Saskatchewan appeal on 6 June 1991.
In a 6‑3 decision, the Court found that the existing electoral boundaries
did not violate the right to vote enshrined in section 3 of the Charter.
The majority opinion was written by Madam Justice McLachlin.
The Saskatchewan Court of Appeal had decided that section
3 guaranteed the equality of voting rights per se, where practically
achievable. Considerations such as geography, historical boundaries and
community interest could be considered as reasonable limitations under section
1, but the government would have to establish that such deviations were
The Supreme Court disagreed, concluding that section 3
guaranteed a right to “effective representation,” not voter parity. Although
relative parity of voting power remains the first consideration in effective
representation, it is not the only one. The Supreme Court noted, for example,
that Sir John A. Macdonald had recognized this fundamental fact as early
as 1872: in introducing the Act to re‑adjust the Representation
in the House of Commons, S.C. 1872, c.13, he said:
... it will be found that ... while the principle of
population was considered to a very great extent, other considerations
were also held to have weight; so that different interests, classes and
localities should be fairly represented, that the principle of number
should not be the only one.
The framers of the Charter had two distinct electoral models
before them: the “one‑person one‑vote” U.S. model and “the
less radical, more pragmatic approach” that had developed in this country
and in England through the centuries. Madam Justice McLachlin quoted from
her earlier decision in Dixon (No. 2) on the difference between the
two, and the manner in which Canada has tended to adopt the British model:
“Pragmatism, rather than conformity to a philosophical ideal, has been its
In short, the Court decided that absolute voter parity
may be practically impossible and, even where it is possible, may actually
detract from the primary goal of effective representation when geography,
community history, community interests or minority needs are a factor.
Elected representatives function in two roles, as legislators and as “ombudsmen”
for their constituents. In a country of vast, sparsely populated territories
and varied distinct interests, deviations from voter parity may be necessary
to ensure effective representation for all.
The non‑northern seats in Saskatchewan all fell within
plus or minus 25% of the provincial quotient or norm. Given this, the Court
found that the evidence supplied by the province was sufficient to justify
the existing electoral boundaries, including the two northern ridings, and
that no violation of section 3 of the Charter had been established. Accordingly,
section 1 did not need to be taken into consideration.
The decision of the Supreme Court of Canada suggests that
the courts should be reluctant to second‑guess legislators on the
appropriateness of electoral redistribution. Where variations from the
population norm are within plus or minus 25%, the government probably need
only establish that there are geographic factors or distinct community interests,
including rural/urban differences, that could justify the variation in the
interests of effective representation. In such cases, no section 3 violation
occurs, and it is not necessary to prove that the variations are demonstrably
justified in a free and democratic society.
The test appears to be close to Madam Justice McLachlin’s
suggestion that “the courts ought not to interfere with the legislature’s
electoral map under section 3 of the Charter unless it appears that reasonable
persons applying the appropriate principles ... could not have set the electoral
boundaries as they exist.” Given this broad test, however, it also appears
that electoral boundaries that cannot meet the test will be extremely hard
to justify under section 1. This is perhaps appropriate because, of all
Charter rights, violations of democratic rights should be the most difficult
to be demonstrably justified in a free and democratic society.
In February 1993, the Prince Edward Island Supreme Court
handed down a decision expanding on the principles outlined by Madam Justice
McLachlin. Historically, Prince Edward Island is divided into three counties
and the Election Act mandates that representation in the legislative
assembly shall be apportioned by county, regardless of population. Two
of the counties have five districts, and the third has six districts. Largely
because of rural‑urban population shifts over the years, there is
a very significant disparity in the number of enumerated voters in the electoral
districts. Of the 16 electoral districts, eight have disparities in excess
of 40% under the provincial average and four have disparities in excess
of 40% above the provincial average. At the extremes, the district of Fifth
Queens is 115% above the provincial average and the district of Fifth Kings
is 63% below the provincial average. In the 1989 election, Fifth Queens
had 5,982 voters per elected member and Fifth Kings had 1,021 voters per
elected member (Prince Edward Island has dual-member ridings).
The Court commented at length on the concept of “effective
representation” as set out by the Supreme Court of Canada, and concluded
that the ideal of fair and effective representation embodies a balance between
absolute voter parity and non‑population factors such as community
history, community of interest, rate of growth, special geographic features
and the like. Accepting that an appropriate urban/rural and regional balance
in political representation was a valid legislative objective, the Court
doubted that the means adopted in Prince Edward Island were either proportional
The Court noted the reference to a deviation of plus or
minus 25% in both the British Columbia and Supreme Court of Canada judgements,
but questioned that a province as small as Prince Edward Island could justify
such a degree of deviation: “Based on the evidence presented during this
hearing, I consider that a variance of plus or minus 10%, as in Manitoba
south of the 53rd parallel, might well be more appropriate.” The Court
declared the relevant provisions of the Prince Edward Island Election
Act to be contrary to the Charter, but left the legislation in place
for a reasonable period of time to avoid a crisis.
In October 1994, the Alberta Court of Appeal was invited,
by means of a reference, to comment on whether the Electoral Divisions
Statutes Amendment Act, 1993 was in compliance with the Charter.
This followed a series of events that demonstrated a troubling split between
the size and nature of urban and rural ridings. The Court, as in an earlier
1991 reference, “decided to withhold any Charter condemnation,” citing the
need for judicial restraint.
Following the most recent federal redistribution, a case
was launched by the Société des Acadiens et Acadiennes du Nouveau-Brunswick
regarding the weight given to the linguistic composition of the population
in drawing electoral boundaries.
C. The Right to be
Qualified for Membership in a Legislative Assembly
As with the right to vote, the right to be a candidate
seems now to be governed almost entirely by federal or provincial statute.
This right is far less restricted than in the 19th century
when, for example, aspiring candidates had to meet property qualifications.
In most cases, the qualifications to be a candidate today coincide with
the qualifications needed to be a voter. Thus it is the disqualifications,
whether traditional or new, that tend to result in legal challenges.
It seems reasonable to assume that the courts will follow
the same general approach with respect to candidate disqualification as
is emerging with respect to voting rights. They will:
look to existing practice in other jurisdictions
and tend to adopt the most liberal;
A 1986 Nova Scotia case is a good example. A public service
worker, together with the government employees’ union, argued that the Nova
Scotia Civil Service Act prevented him from becoming a political
candidate. The union did not suggest that a public service worker should
continue as a public service worker while being a candidate for political
office. The argument was rather that the sections of the Act prohibiting
partisan work and the payment of party membership dues, together with the
non‑existence of leave-of-absence provisions, had the effect of disqualification.
The issue was closer to “administrative disqualification” than to strict
The judge canvassed other provincial jurisdictions, and
even included in his judgement a five‑page table of comparisons decisively
indicating that the Nova Scotian provisions were unusually restrictive.
He then found that the restrictions did not meet the tests of minimum impairment,
or of proportionality between the end to be obtained and the means used.
The objective of a politically neutral public service could be obtained,
he decided, by the lesser means of providing for a leave of absence rather
An Ontario case has since confirmed that requiring a candidate
or person elected to a provincial or federal office to take an unpaid leave
from public employment does not violate section 3 rights. A 1992 Ontario
Court of Appeal decision has also affirmed that section 3 rights do not
apply to municipal councils.
There is also the question of how far section 3 extends.
It clearly covers the right to stand for election, to be elected, and to
be termed a member, but it is not so clear that it covers the right to be
or to remain seated in the House or a legislative assembly. The disqualification
or expulsion of a sitting member has traditionally been a privilege of the
House as a whole. In MacLean, one of the major cases on the relationship
between the Charter and the right to be qualified for membership, the trial
judge noted that “section 3 deals with the right to vote and the right to
be elected and that is different from setting standards for sitting members.”
The MacLean case revolved around the validity of
express disqualification against potential membership in the House. There
has been a long‑standing common law disqualification of persons found
guilty of corrupt electoral practices, the original purpose of which appears
to have been to preserve the integrity of the electoral process. The basis
of the law seems to be the theory that someone who has engaged in corrupt
electoral practices once may well do so again, bringing the process into
disrepute. In 1986, the Nova Scotia House of Assembly went considerably
farther, and passed an Act to expel William MacLean, a former Minister of
the government who had pleaded guilty to falsifying his expense claims.
Mr. MacLean’s financial affairs, about which rumours
had been circulating for a number of years, had become an embarrassment
to the government. Presumably wishing to settle the issue once and for
all, the government included in the Act a section to disqualify persons
convicted of certain criminal offences from being nominated as a candidate
or standing for election to the legislature for a period of five years.
With an obvious eye to the Charter, the Act was entitled An Act Respecting
Reasonable Limits for Membership in the House of Assembly.
Mr. MacLean, who had announced his intention to re‑offer
himself as an independent candidate but would have been disqualified by
the section, promptly decided that his fundamental rights under the Charter
were being violated by the Act. Also at issue were the rights of the voters
of his native Port Hawkesbury. Could they continue to cast a vote for Mr.
MacLean, or could the House of Assembly legislatively prevent them from
In early 1987, the Chief Justice of the Trial Division
of Nova Scotia decided that Mr. MacLean did have the right to be qualified
to run for office and the people of Port Hawkesbury had the right to vote
for him. The elected could not legislatively impede the rights of the electors.
In the event, Mr. MacLean was re‑elected and reseated, but defeated
in the following election.
In discussing whether the Charter applies to the amendment
of provincial constitutions, an issue which also came up in the British
Columbia case on electoral distribution, the Chief Justice noted that “if
it were otherwise, a province could, for example, amend its constitution
by passing a law that only blue‑eyed, brown‑haired persons could
qualify for membership in the legislative assembly.”
The new statutory disqualifications on the right to run
for office were found to be penal and not demonstrably justified in a free
and democratic society. Historically, it seems clear that Parliament could
expel members for breach of privilege, including conduct bringing the House
into disrepute, but could not prevent their re-election. Thus the House,
by its own law and customs, has control over internal House matters, including
membership, but less over the qualifications of those standing for election
The fine line remaining was between exclusion and expulsion.
Could the House refuse to seat an elected Member or effectively exclude
him/her if his/her conduct had been offensive to House traditions? Or must
they first seat the member, and then wait for him/her to commit some fresh
contempt of the legislature that would justify expulsion?
In 1996, the Supreme Court of Canada upheld a provision
of the New Brunswick Elections Act, which stated that any person
convicted of a corrupt or illegal practice under that Act was disqualified
for five years from being elected to or sitting in the Legislative Assembly
(Harvey). Mr. Harvey had induced a 16-year-old female to vote, knowing
that she was ineligible.
The majority of the Court noted that the English version
of section 3, providing for a “right to be qualified” for membership in
a legislative assembly, is somewhat ambiguous, but that the French version
clearly indicates that the right is to be a candidate and to sit as a member:
“est éligible aux élections.” The disqualification from sitting in the
legislative assembly infringes section 3 rights, but the infringement is
justified in order to preserve the integrity of the election process. The
five-year disqualification ensures that the person convicted of a corrupt
or illegal election practice is ineligible to run in the next general election;
it is a minimal and proportional impairment of section 3 rights.
Two of the judges found that the disqualification from
office should be immune from judicial review because it falls within the
legislature’s historical privilege, which enjoys constitutional status and
is not subject to the Charter. Such disqualifications can be reviewed by
the courts to ensure that they do not fall outside the rules of Parliament,
as any based on such features as race or gender would do; however, once
a court has decided that an Act falls within the domain of parliamentary
privilege, it should not proceed with Charter review. The Chief Justice,
on the other hand, specifically found that legislation with respect to parliamentary
privilege was subject to the Charter. The majority decision did not deal
with the issue of privilege, on the grounds that it was raised by an intervenor
rather than the parties themselves, and was not seriously argued.
on Section 3 Rights
Overall, the courts have split on whether there are limitations
on voting rights, particularly with respect to residency and age, which
are inherent in section 3, or whether all restrictions have to be demonstrably
justified as reasonable under section 1. Many of the existing cases took
place under the pressure of an upcoming election, and the courts have preferred
to leave to the legislatures a wholesale rewriting of voting laws, even
when they are over‑restrictive.
There is often a tendency to canvass the situation in other
Canadian electoral jurisdictions. If the challenged provision is within
the norm, it is likely to stand. If it is notably more restrictive than
the Canadian average, the court is naturally inclined to view it more critically.
As for the right to be qualified for membership in a legislative
body, it would seem the only safe statutory limitations on membership are:
structural or administrative reasons, such
as: membership in, or nomination for, another legislative body or the
holding of a government office for reward; or section 750 of the Criminal
Code, which states that anyone convicted of an indictable offence
and sentenced to more than two years’ imprisonment is incapable of being
elected, sitting or voting as a member of Parliament or of a legislature
until the sentence is served;
corrupt election practices which bring the
election process itself into disrepute; and
conviction for offences which by their very
nature offend against the dignity of the House, or which so clearly
involve breaches of the public trust that conviction under any circumstance
justifies automatic exclusion.
In general, section 3 of the Charter has clearly entrenched
and speeded up a move towards more universal suffrage and procedural consistency.
It has given the courts a lever to enforce changes in the various procedural
limitations remaining in the various Election Acts and it has caused
some narrowing in specific disqualifications. How much more it will do
remains to be seen.
Overall, in dealing with both limitations of voting and
limitations on membership qualifications, the courts are not likely to favour
new classes of restrictions. As far as pre-existing restrictions are concerned,
there is the argument that they are prima facie reasonable in a democratic
society unless overbroad or unreasonable in their application. Limitations
based on administrative convenience are likely to be frowned upon, especially
where other jurisdictions have managed to apply a less restrictive approach.
E. Other Charter Issues
Increasingly, election issues other than the right to vote
or stand for office are being treated as “freedom of expression” concerns.
In 1991, in Osborne, the Supreme Court of Canada dealt with the section
of the federal Public Service Employment Act that prohibited public
service workers from working for or against a candidate or political party.
The Court agreed that the provision implemented the constitutional convention
of public service neutrality, but found that this did not protect it from
Charter scrutiny. Although protecting the neutrality of the public service
was an important objective, the provision did not constitute a “reasonable
limit” because it was unnecessarily broad. The court was not prepared to
“read down” the legislation, or interpret it in a restrictive manner, stating
that it was for Parliament itself to decide on the appropriate limitations.
The provisions of the Canada Elections Act dealing
with election expenses have generated a number of cases.
The Supreme Court of Canada has upheld both the use of
compulsory union dues for political purposes (Lavigne, 1991), and
the use of public funds to support serious electoral candidates (MacKay,
of Broadcasting Time
In November 1992, an Alberta court decided a Reform Party
of Canada challenge to the allocation of broadcasting time during an election
under the Canada Elections Act. The Act requires broadcasters to
make available a total of six and one‑half hours to registered political
parties for the purposes of paid political advertising. Both parties agreed
that at certain times of the year (particularly October, November, April
and May), “prime time” advertising may be sold out in advance. In the past,
broadcasters have pre-empted previously sold advertising time in order to
comply with the requirements of the Canada Elections Act. It could,
therefore, prove impossible for political parties to purchase prime time
advertising other than that allocated to them under the Act. Additionally,
after listening to considerable expert testimony, the Court found that “political
advertising by way of the television broadcast media is in all probability
the most effective means of reaching voters.”
The Court found that the purpose of the legislation, i.e.,
ensuring an adequate supply and equitable allocation of prime broadcasting
time during federal election campaigns for use by registered political parties,
was appropriate. The effect of the allocation, however, was to discriminate
against new and emerging political groups, such as the Reform Party, and
thereby limit their ability to express themselves freely.
Turning to a section 1 analysis, the Court decided that
the purpose of the legislation was sufficiently pressing and substantial
to justify a possible infringement of freedom of expression. Moreover,
the reservation of broadcast time was proportionate to the purpose and constitutionally
The Court had reservations, however, about the allocation
of broadcast time. The allocation formula is based on a party’s percentage
of seats in the House of Commons, the percentage of the popular vote it
obtained in the last election, and the number of its candidates in the previous
election. Although all these factors can be considered a reliable indicator
of public interest, they are also all retrospective in nature. Taken alone,
the Court found that they tend to limit the broadcast time available to
new or emerging national parties.
The Court noted that the Reform Party had indicated that
it expected to run 220 candidates in the following federal election.
Under the allocation of advertising time in force at the time of the hearing,
however, it would be entitled to only 10 of the 390 minutes set aside for
broadcast advertising. The Progressive Conservative Party would be entitled
to 173 minutes (roughly 17 times as much) and the two other national parties
to 110 and 71 minutes.
Consequently, the Court found that the retrospective nature
of the allocation formula was discriminatory in effect, and neither proportionate
nor appropriate to the purpose of ensuring adequate air time to parties
with the greatest national appeal. The allocation formula was declared
unconstitutional, although the Court did suggest that the discriminatory
effect might be alleviated by the addition of such factors as the number
of candidates for the current election named by a specified date. Although
a separate provision of the Canada Elections Act gave a wide discretion
to the Elections Canada Broadcasting Arbitrator to modify the results if
the allocation formula appeared unfair, the Court found that, once the formula
was struck down, this provision was too vague.
The decision was appealed, and in March 1995 the Alberta
Court of Appeal handed down a narrow 3-2 decision allowing both the appeal
of the Attorney General of Canada on the main point, and a cross-appeal
on certain other sections.
The majority of the Court of Appeal agreed with a large
part of the trial decision on the broadcast allocation formula, but considered
that the judge had erred in not fully considering the broad discretion of
the Broadcast Arbitrator to relieve any unfairness or discriminatory effects
that would arise from a strict application of the broadcast allocation formula.
The allocation formula must be considered in its entirety, and the discretion
of the Broadcast Arbitrator provides an internal mechanism by which any
such discriminatory effects or unfairness can be corrected. Thus, these
sections do not have the effect of restricting the freedom of expression
of any political party; they merely reserve time that might not otherwise
be available and provide for the allocation of such time.
The Reform Party had, however, cross-appealed with respect
to the trial judge’s findings upholding certain other sections of the Elections
Act dealing with the regulation of broadcast time during elections.
Two of these sections had the effect of preventing a registered party from
purchasing additional broadcast time. Broadcasters selling additional time
to one party were required to offer proportional additional time to other
parties at no charge. The Attorney General justified these provisions by
arguing that they preserved the integrity of the allocation formula and
helped to control election expenses. The Court found that total election
expenses were already effectively controlled by other provisions of the
Act. Once all parties have some access to general broadcast time as a result
of the allocation provisions, there is no need to impinge upon the freedom
of parties to decide how they can best use their limited allowable expenditures.
The minority decision would have found for the Reform party on all counts,
and would have effectively struck down the allocation scheme.
2. Third-party Spending
In 1984, the National Citizens’ Coalition mounted a court
challenge against a 1983 prohibition of third‑party expenditures.
The government argued that the limitation was necessary as part of a legislative
framework regulating expenditures by candidates and parties and to prevent
an unfair benefit to candidates with wealthy supporters. The Court found
that such fears alone were not a sufficient reason for limiting Charter
rights, and that the government had not adequately established that such
provisions were necessary. The decision, which was handed down just months
before the 1984 election, was not appealed.
Bill C‑114, which amended the Canada Elections
Act in the spring of 1993, re-introduced a limit of $1,000 with respect
to direct advertising by third parties, either individually or jointly.
On 25 June 1993, a judge of the Alberta Court of Queen’s Bench, the same
Court that had heard the 1984 challenge, again struck down third-party spending
In 1996, the Alberta Court of Appeal upheld the decision
of the lower court (Somerville). The Court found that the provision
violated three different Charter rights: section 2(b), freedom of
expression; section 2(d), freedom of association; and section 3, the right
to vote. It was common ground that the provision impaired freedom of expression,
and the argument was confined to whether this could be justified under section
1 of the Charter. Freedom of association was affected in that the section
prevented third parties from pooling their resources to inform voters; an
important aspect of association is the ability to combine resources to pursue
common goals, influence others, exchange ideas, and effect change.
As for the section 3 “right to vote,” the Court of Appeal
described it as being “at the core of our constitutionally enshrined democracy,”
and concluded that “justifying its breach will be onerous indeed.” The
Court also concluded that it is well accepted in Canada that the section
3 right to vote includes a “right to sufficient information” component,
although the breadth of that right remains unclear. The result of disallowing
third-party advertising, according to the Court, is that “a so-called ‘informed
vote’ amounts to little more than a choice from amongst various candidates,
where citizens are only as ‘informed’ (or not) as the news media, the parties
and the candidates themselves want the citizens to be.”
The Court concluded that third-party spending limits are
primarily aimed at:
preserving an electoral system that gives a privileged
voice to political parties and official candidates within those parties;
ensuring that other interest groups cannot be heard
in any effective way.
There was no appeal from the 1996 decision of the Alberta
Court of Appeal. In a 1997 decision on Quebec’s referendum legislation,
however, the Supreme Court of Canada clearly indicated that restrictions
on third parties can be justified under the Charter of Rights and Freedoms,
and explicitly stated that it disagreed with the reasoning of the Alberta
Court of Appeal.
The Somerville decision also struck down provisions
that prohibited advertising in the first 18 days of an election campaign,
or on the day before voting day or on voting day. The Court found that
these violated freedom of expression, with no clear evidence of an objective
that would justify such a violation.
In a 1998 ruling on Quebec’s referendum legislation (Libman),
however, the Supreme Court of Canada found that restrictions on third-party
spending could be constitutionally justified, and cast doubt on the 1996
3. Third-party Advertising
The issue of third-party advertising was addressed in the
new Canada Elections Act, which came into force on 1 September 2000.
The spending limit for third parties was set at $150,000 in relation to
a general election, including no more than $3,000 in an individual constituency.
The third party is required to identify itself in any election advertising.
Provision is made to prevent attempts to circumvent the limits by splitting
into two or more groups or acting in collusion. Also, third parties have
registration requirements: immediately after incurring election advertising
expenses totalling $500 and after the issue of the writ, the third party
is required to send an application for registration to the Chief Electoral
Officer. Upon receipt of the application, the Chief Electoral Officer registers
the third party if the requirements in the Act are met. Registration is
valid only for the election for which an application is made. Requirements
include the appointment of an auditor, recording of contributions, and authorization
of all election advertising expenses incurred on behalf of the third party.
Following the election, third parties are required to submit reports containing:
a list of election advertising expenses; the time and place of the broadcast
or publication of the advertisements; details of contributions received
in the period beginning six months before the issue of the writ and ending
on polling day; and the names and addresses of persons contributing more
than $200. The details that must be reported by third parties are similar
to those required of political parties.
Shortly after the Act received Royal Assent, Stephen Harper,
then the president of the National Citizens’ Coalition, sued the Attorney
General of Canada. He sought a declaration that the provisions affecting
third-party advertising should be declared of no force and effect, as they
breached his constitutional rights to freedom of speech and association
and the right to vote. The matter moved expeditiously to trial, and a nine-day
trial concluded on 13 October; judgement was reserved. No decision had
been rendered when the federal general election was called on 22 October 2000.
Mr. Harper, therefore, applied for an interlocutory injunction restraining
the Chief Electoral Officer from enforcing the provisions of the Act that
restrict and control third-party advertising. The judge granted part of
the relief sought, i.e., suspending the spending limits, but allowed other
provisions, such as the registration and disclosure of contributions, the
advertising blackout on election day, and pooling contributions. This decision
was appealed to the Alberta Court of Appeal, which, on 23 October 2000,
upheld the injunction. On 10 November 2000, however, the Supreme
Court of Canada, in an 8-1 decision, suspended the injunction on the basis
of the balance of convenience. As a result, the third-party spending limits
remain in force, although they were not to be applied to advertising between
22 October 2000 and 10 November 2000.
On 29 June 2001, the Alberta Court of Queen’s Bench
ruled that the Canada Elections Act’s limits on third-party election
advertising expenses violated section 2(b) of the Charter of Rights
and Freedoms (Harper v. Canada (A.G.)). The federal
government had argued that the limits were reasonable and equitable, but
Justice Robert Cairns found that the rules could not be saved by
section 1 of the Charter. He also found that the section that prohibits
third parties from combining or splitting in order to circumvent the spending
limits violated section 2(d) and was not saved by section 1.
The judge, however, did agree with the government’s
position that the ban on election advertising in the 20 hours before polls
closed on election day was reasonable and could, indeed, be saved under
section 1. He also found that the rest of the Act’s contested sections
were not in violation of the Charter. This includes those that call for
third parties to identify themselves in their election advertising and for
them to register with the Chief Electoral Officer if they spend more than
$500. Therefore, the Justice Cairns did not overturn the regulatory controls
on reporting costs and details of third-party advertising.
Shortly after the ruling, Mr. Harper indicated that
he might launch an appeal regarding the contested sections of the Canada
Elections Act that were not struck down by Justice Cairns. He subsequently
stepped down as President of the National Citizens’ Coalition
in order to run for the leadership of the Canadian Alliance Party, which
he won, and was elected as a Member of the House of Commons. To date, no
appeal has been made by Mr. Harper or on his behalf. In October 2001, the
federal government announced that it was appealing Justice Cairns’ rulings
on limitations for third-party advertising expenses. The case is now before
the Alberta Court of Appeal.
On 29 November 2001, Elections Canada confirmed that
the National Citizens’ Coalition (NCC) in Toronto was being charged with
violating the Canada Elections Act during the 2000 federal election
campaign. The organization was charged with breaching the Act for failing
to register its third-party election advertising costs of $500. Gerry Nicholls,
a vice-president of the NCC, stated that the advertisement in question was
not an election commercial, but rather “the ad simply asked Canadians to
support the NCC’s legal challenge to the gag law.”
4. Last-minute Reporting
In May 1995, the Ontario Court of Justice handed down a
decision on the constitutionality of prohibiting the publication of polls
during the weekend before an election (Thomson Newspapers). Somers
J., in a lengthy and reasoned judgement, made a number of useful observations
on the way to his final decision. For example, he noted that the legislation
must reasonably be read as applying only to new polls, and not to references
to polls that had previously been publicly discussed.
It was agreed by all parties that the provision violated
the Charter guarantee of freedom of expression. More difficult to resolve
was whether it also violated the right to vote guaranteed by section 3 of
the Charter. Although agreeing that the right to vote must be “read broadly
to encompass the right to vote in a free genuine multi-candidate election,”
Somers J. concluded that, in the overall context of the election campaign,
the prohibition against the last-minute reporting of polls was not contrary
to the section 3 right to vote.
Somers J. then went on to a section 1 analysis of whether
the prohibition could be demonstrably justified in a free and democratic
society. The first test is whether the objective of the legislation relates
to concerns that are pressing and substantial in such a society. The Court
found that the level of public concern about the effect of polling on the
electoral process was evidence that the legislation’s objective was valid.
The next test is whether there is a rational link between
the legislative measures and the harm to be remedied. The Court found that
there was a rational connection, in that last-minute polls could influence
the public, but could not be responded to or critiqued. As for the question
of minimal impairment, or whether the objective could have been achieved
without impairing Charter rights to the same degree, the Court found that
other suggested measures, such as a ban on false polls or the mandatory
publication of methodological information, would not have been effective.
Finally, the Court noted that Parliament had had the difficult
task of evaluating unclear social science studies while balancing the different
interests of several groups:
the public’s interest in getting as much electoral
information as possible, being protected from misleading information,
and having the information received tested by debate;
Somers J., in upholding the constitutionality of the blackout
provision on polls, concluded by quoting the Supreme Court of Canada in
a case involving a similar balancing of issues: “If the legislature has
made a reasonable assessment as to where the line is most properly drawn,
especially if that assessment involves weighing conflicting scientific evidence
and allocating scarce resources on this basis, it is not for the court to
second guess. That would only be to substitute one estimate for another.”
In 1996, the Ontario Court of Appeal rejected an appeal
of this decision, largely adopting the logic of Somers J. Although there
was no empirical evidence as to the extent or nature of the influence of
opinion polls, the Court of Appeal found that there was a real concern about
their potential for being deceptive when not accompanied by methodological
information or when there is insufficient time for response. Although the
right to vote includes the right to have the necessary information in order
to vote in a rational and informed manner, the court decided that “the right
to an informed ballot does not, in our view, elevate the provision of a
snapshot of the mood of the electorate at a particular time to the level
of a constitutional entitlement during the last three days of an election
The Court of Appeal also extended the judgement of Somers
J. by finding that the prohibition included “hamburger polls,” or polls
based on the belief that sales of certain goods (such as hamburgers) can
indicate the opinions of voters, and polls already published prior to the
last three days of the campaign. The Court of Appeal noted the decision
of the Alberta Court of Appeal in Somerville. Because that case
had dealt largely with direct communications with the electorate, however,
the Court felt that the prohibitions involved were much more intrusive than
those limiting the right to receive information as to the opinion of others.
The case was further appealed to the Supreme Court of
Canada, which in May 1998 struck down the prohibition on the publication
of opinion polls during the last 72 hours of an election campaign (Thomson
Newspapers). In a 5-3 decision, the Court ruled that the ban was a
very serious invasion of Canadians’ freedom of expression under the Charter.
Mr. Justice Michel Bastarache said that the blackout amounted to a
complete ban on political information at a crucial time in the electoral
process, and interfered with both the rights of voters to have the most
up-to-date information and the rights of the media and pollsters to provide
it. He also found the notion that voters would be unable to assess the
weight to be given polls to be patronizing; although inaccurate polls are
possible, voters must be presumed to have a certain degree of maturity and
intelligence. Less intrusive measures could be instituted, such as a requirement
that the methodology of the poll be disclosed. He also argued that the
blackout affected voters’ perception of the freeness and validity of their
vote. There was no reasonable apprehension that significant harm might
ensue to Canadian voters in the absence of a blackout, nor were they a vulnerable
group in danger of being manipulated by pollsters or the media. The three
dissenting judges – all from Quebec – argued, however, that the ban was
a modest measure of protection for voters against factual misinformation,
and lamented the influence exerted by polls in modern electoral campaigns.
In the new Canada Elections Act, which came into
force on 1 September 2000, section 328 prohibits the transmission to the
public of the results of new election surveys during polling day. Originally,
the bill would have imposed a 48-hour blackout on election advertising and
new opinion polls, but this was reduced, on a motion of amendment from the
government during consideration of the bill in the House of Commons, to
a prohibition on advertising and new opinion polls until the close of voting
on election day itself. This occasioned considerable criticism from the
media and others. The new provision is also designed to prohibit exit and
entrance polls on election day.
of Political Parties
Another issue that has come before the courts in recent
years involves the registration of political parties under the Canada
Elections Act. To be eligible for registration, various requirements
must be met. In addition, there are various ongoing requirements. Benefits
flow from registration, including the ability to:
issue tax receipts for contributions;
Amendments to the Act in 1993 resulted in several political
parties being de-registered. These provisions were challenged in court
by Miguel Figueroa, the leader of the Communist Party of Canada, one of
the parties that had been de-registered. He sought a declaration that several
provisions of the Act infringed the Charter and therefore were of no force
In March 1999, Madam Justice Molloy of the Ontario Court
held that the requirement that a party must nominate at least 50 candidates
in order to be a registered political party in federal elections violated
section 3 of the Charter, and could not be saved by section 1. She ordered
that the relevant provisions be amended by changing the word “fifty” to
the word “two.” In light of this determination, it was not necessary to
address the issue of party affiliation of candidates on ballots, although
the judge did so. The prohibition against identifying on the ballot the
party affiliation of candidates who were not endorsed by registered parties
was held to infringe section 3 and could not be justified under section
1. The consequences of de-registration of a party – liquidate all assets,
pay debts, and remit any balance to the government – was held to infringe
sections 2 and 3 of the Charter.
Molloy J. also ruled unconstitutional the section requiring
candidates to post a $1,000 deposit – $500 of which is refundable if the
candidate complies with the reporting requirements following the election,
and $500 of which is refundable if the candidate receives at least 15% of
the votes cast – as a limitation on the right to stand for election. The
Court decided that the provision could not be justified, and decided that
the appropriate remedy would be to leave the deposit requirement in place,
but to read in a requirement that the entire amount would be refundable
upon compliance with the reporting requirement. This aspect of the decision
was not appealed, and was in fact incorporated into the new Canada Elections
The Attorney General appealed the findings regarding the
number of candidates and the identification of candidates. Justice Doherty,
writing for the unanimous Court, held that the purpose underlying the right
to stand for election in section 3 of the Charter was effective representation.
Political parties enhance effective representation by: structuring voter
choice; providing a vehicle for public participation in politics; and giving
the voter an opportunity to be involved in the process of choosing the government
of the country. Those roles require a significant level of involvement
in the electoral process. Some meaningful level of participation is, therefore,
properly a condition precedent to eligibility for the benefits available
to registered political parties, and the number of candidates is a legitimate
means of measuring that participation. Reasonable people may differ on
the specific measure or number, but the 50‑candidate requirement is
within the bounds of reasonableness. The Court also rejected Mr. Figueroa’s
argument that the 50-candidate requirement infringed sections 15 and 2(d)
of the Charter.
6. Listing of Party
Affiliation on the Ballot
The Court (in Figueroa)also held that the sections
of the Act providing that only registered parties may have party affiliation
listed on the ballot violate the right to vote in section 3 and are not
justifiable limits to that right under section 1. The right to vote contains
an informational component, and the listing of party affiliation on the
ballot is an important piece of information for voters. The provisions
in the Act seek to avoid voters being confused or misled, but it did not
follow that because a political party nominates 49 or fewer candidates that
the listing of the party affiliation on the ballot will mislead or confuse
voters. In fact, for smaller parties, it may provide the only information
that the voter has about that particular candidate. These provisions were
therefore declared invalid, but the declaration was suspended for six months
to allow Parliament a reasonable opportunity to amend the legislation.
In response to this judgement, the government introduced
Bill C-9, An Act to amend the Canada Elections Act and the Electoral Boundaries
Readjustment Act, on 15 February 2001. It received Royal Assent
on 14 June 2001. The basic objective of the bill was to address the decision
of the Ontario Court of Appeal regarding the identification of the political
affiliation of candidates on election ballots.
Pursuant to the judgement of the Ontario Court of Appeal,
Bill C-9 set out a regime for the political affiliation of candidates who
do not belong to registered parties to be indicated on the ballot. It introduced
a new concept of a “political party,” to describe a grouping or entity that
nominates at least 12 candidates; it is to be distinguished from a “registered
party,” an “eligible party,” and a “suspended party.” The Act continued
to make registration as a party the key to being eligible for the other
benefits accruing to parties. The bill allows “political parties” to have
the affiliation of their endorsed candidates shown on the ballots. In other
words, a political grouping or party can run candidates in an election,
and have them identified as such, provided it runs candidates in at least
12 electoral districts. In the case of a by-election, only those parties
that had nominated at least 12 candidates in the preceding general election
are entitled to have their candidates identified on the ballot. The number
12 was chosen because it is the number used for recognition of parties in
the House of Commons.
F. Section 4 and Section
Sections 4 and 5 of the Charter read as follows:
4.(1) No House of Commons and no legislative assembly
shall continue for longer than five years from the date fixed for the
return of the writs at a general election of its members.
(2) In time of real or apprehended war, invasion or
insurrection, a House of Commons may be continued by Parliament and a
legislative assembly may be continued by the legislature beyond five years
if such continuation is not opposed by the votes of more than one‑third
of the members of the House of Commons or the legislative assembly, as
the case may be.
5. There shall be a sitting of Parliament and of
each legislature at least once every twelve months.
Section 50 of the original Constitution Act, 1867
contained a similar provision with respect to the federal Parliament. These
sections have not been controversial. Some questions have arisen as to
how long a government might be able to continue to operate after the five‑year
life of the Parliament had expired; however, these questions have been only
In November 1989, the Royal Commission on Electoral Reform
and Party Financing was established. On 13 February 1992, the Commission
tabled its four‑volume report, Reforming Electoral Democracy,
which included specific legislative proposals. The Commission concluded
that the electoral system should be governed by six major objectives:
On 14 February 1992, the House of Commons appointed a special
eight‑member committee to undertake a comprehensive review of the
Royal Commission report, and to recommend changes in the Canada Elections
Act. Because of the magnitude of this task, the Special Committee on
Electoral Reform decided to divide its work into phases.
The first phase was to deal with those changes,
mainly administrative, for whose implementation the Chief Electoral Officer
needed as much lead time as possible before the next election. On 11 December
1992, the Committee tabled its report on this phase, including draft legislation
to implement its recommendation. Subsequently, the government introduced
Bill C‑114 (based on this report) which received Royal Assent
on 6 May 1993. It dealt primarily with:
the activities undertaken by Elections Canada prior
to and on election day;
In the second phase of its work, the Committee concentrated
on other matters that it considered should also be in force before the next
election, and which the Chief Electoral Officer could implement quickly.
They included the areas of broadcasting, disclosure of information in public
opinion polls, third-party advertising, decriminalization of certain election
offences, and election financing. The second phase also examined methods
for facilitating the candidature of disabled persons and those caring for
young children. Although the Committee tabled its second phase report,
Parliament prorogued before further action could be taken.
In the third phase of its study, the Committee had
intended to deal with all other matters in the Report of the Royal Commission
on Electoral Reform and Party Financing, including:
In March 1994, the government introduced Bill C‑18,
an Act to suspend the operation of the Electoral Boundaries Readjustment
Act, which would have abolished the 11 electoral boundaries commissions
that were in the process of adjusting the redistribution and boundaries
of seats based on the 1991 federal census. Although the government argued
that its intent was to provide an improved redistribution system, various
opposition members in both the House of Commons and the Senate argued that
the bill was an unprecedented and unwarranted interference in the decennial
electoral redistribution process guaranteed by section 51 of the Constitution
Act, 1867. Of particular concern was the possibility that, as a result
of Bill C‑18, the next election might be held on a distribution based
on the 1981 census; in this case, the faster-growing provinces would be
deprived of the additional seats to which they would otherwise be entitled.
Various amendments to the bill were proposed by the Senate
and resulted in a compromise whereby the existing electoral boundaries commissions
were suspended until 22 June 1995, rather than being abolished.
Bill C‑18 (as amended) was given Royal Assent on 15 June 1994.
In the meantime, on 19 April 1994, the House of Commons instructed the Standing
Committee on Procedure and House Affairs to prepare a bill dealing with
the electoral redistribution and readjustment process.
The Committee was asked to include four specific issues
in its deliberations:
The Committee reported on 25 November 1994, and included
in its report both a draft bill and the dissenting opinion on certain issues
expressed by the Reform Party members of the Committee. The Committee reluctantly
concluded that it was not feasible to cap or reduce the size of the House
of Commons at that time. The Committee recommended, however, that a parliamentary
committee be charged with devising a new formula to reduce or limit the
size of the House in the readjustment to be based on the 2001 decennial
census. This committee could deal with such complexities as the need for
possible constitutional amendments, as well as the extensive political implications.
In mid-February 1995, the government introduced Bill C-69,
which was based on the Committee’s draft legislation. Bill C-69 contained
a significant number of proposed reforms to the redistribution process.
The Chair of each electoral boundaries commission
would continue to be appointed by the Chief Justice of the province
and the other two members by the Speaker of the House of Commons. However,
the Speaker would publicize the impending appointments, solicit applications,
and consult widely, allowing for a more transparent process. The Speaker’s
two appointments could be vetoed by the House of Commons.
To minimize the effects of population shifts, a redistribution
of seats within provinces would take place after each quinquennial
(five-yearly) census. This redistribution would not affect the constitutional
provisions respecting the redistribution of seats between provinces
every ten years (2001, 2011, etc.), and would take place only in provinces
where population shifts had caused more than 10% of the province’s constituencies
to vary more than 25% from the provincial quotient. At the other end
of the spectrum, even decennial redistributions would not be necessary
in provinces where the overall number of federal ridings had not changed,
and where all the existing ridings had a population within 25% of the
Commissions would be required to provide more information
to the public about the redistribution process, and at an earlier stage.
To assist public intervenors, each commission would produce three sets
of plans and maps showing different redistribution schemes and indicating
and justifying its preferred option.
Bill C-69 sets out proposals for more detailed criteria
to be used by the commissions in drawing electoral maps, including community
of interest (which is more clearly defined), manageable geographic size,
and the probability of future population growth.
All ridings would have to be within 25% of the provincial
quotient except in “extraordinary” circumstances, as is now the case.
However, such constituencies would have to be geographically isolated
from the rest of the province, or not readily accessible, and the commission
would have to provide written reasons for creating them.
If a commission amended its proposal after the public
hearing so as to affect more than one-quarter of the total population,
a second public hearing would be required.
Finally, the current provision that each commission’s
proposals be tabled in the House of Commons for debate and study by
a committee would be eliminated on the basis that Members of Parliament
should participate in the public hearings like other Canadians.
(More detailed information on Bill C-69 can be found in
Legislative Summary LS-216E, Bill C-69: Electoral Boundaries Readjustment
Act, prepared by the Parliamentary Research Branch, Library of Parliament.)
The Senate, following the recommendations of the Standing
Committee on Legal and Constitutional Affairs, made seven amendments to
Bill C-69, the most significant of which would lower from 25% to 15% the
maximum deviation from the provincial quotient allowed to any riding. This
is consistent with the recommendations of the Lortie Commission and with
the position of the Reform Party in the House of Commons, even though the
Supreme Court of Canada has specifically stated that the 25% maximum deviation
On 20 June 1995, the House of Commons accepted one relatively
minor and technical amendment by the Senate, but rejected the other amendments.
On 22 June 1995, the suspension of the existing readjustment process expired,
and the Chief Electoral Officer transmitted copies of the reports of the
electoral boundaries commissions for the ten provinces and the Northwest
Territories to the Speaker, who tabled them in the House of Commons. On
8 January 1996, the Governor General, pursuant to an Order in
Council, proclaimed the draft representation order outlining the new electoral
boundaries to be in force on the first dissolution of Parliament at least
one year after the proclamation. Bill C‑69 died, however, when
Parliament prorogued on 2 February 1996.
In October 1996, Parliament enacted Bill C-243, a Private
Member’s bill, which increased the requirements that must be met for registered
political parties to be reimbursed a certain percentage of their election
expenses: under the bill, in order to be eligible for reimbursement, a
party would have to obtain either 2% of the votes cast in an election or
5% of the votes cast in those ridings where the party had endorsed candidates
(see Legislative Summary LS-242E, Bill C-243: An Act to Amend the Canada
Elections Act (Reimbursement of Election Expenses), prepared by the
Parliamentary Research Branch,Library of Parliament).
Bill C-63 was passed by Parliament in December 1996. It
amended the Canada Elections Act to provide for the establishment
of a permanent automated register or list of voters for federal elections,
by-elections and referendums, thereby eliminating the need for door-to-door
enumeration. This change makes it possible to reduce the minimum election
period from 47 to 36 days. In addition, the bill changed the hours of voting
across the country in an effort to ensure that all results would be available
at roughly the same time: under the amendments, the hours of voting in
the six different time zones across Canada will be staggered (see Legislative
Summary LS-275E, Bill C-63: An Act to Amend the Canada Elections Act,
the Parliament of Canada Act and the Referendum Act (Permanent Voters’ Register),
prepared by the Parliamentary Research Branch, Library of Parliament).
At the beginning of the 36th Parliament, the
House of Commons Standing Committee on Procedure and House Affairs undertook
a comprehensive review of the Canadian electoral system and the Canada
Elections Act. The Committee’s report, tabled in the House in June
1998, was intended to form the basis of future legislative amendments to
be brought in by the government. In its report, the Committee reviewed
most of the recommendations made by:
the Royal Commission on Electoral Reform and Party
Financing in its 1989 report;
the 1992-1993 House of Commons Special Committee
on Electoral Reform;
the Chief Electoral Officer in his 1996 and 1997
reports to Parliament; and
various political parties, Members of Parliament
and other witnesses.
On 7 June 1999, the government introduced Bill C-83, which
would replace the Canada Elections Act. This was reintroduced as
Bill C-2 at the beginning of the second session of the 36th Parliament,
on 14 October 1999 (see Legislative Summary LS-343E, Bill C-2: The Canada
Elections Act, prepared by the Parliamentary Research Branch, Library
of Parliament). The bill was intended to modernize the Act and to address
administrative problems that had arisen since it was introduced almost 30
years previously. The bill also responded to court decisions on third-party
spending and blackouts. It received Royal Assent on 31 May 2000, and came
into force on 1 September 2000.
On 15 February 2001, the government introduced Bill
C-9, An Act to amend the Canada Elections Act and the Electoral Boundaries
Readjustment Act. The bill was designed to respond to the decision of the
Ontario Court of Appeal in Figueroa v. Canada (Attorney General)
regarding the identification of the political affiliation of candidates
on election ballots. It also set out a number of technical and administrative
changes and corrected certain drafting errors in the new Canada Elections
Act, which had been passed in 2000. The bill received Royal Assent
on 14 June 2001.
February 1981 - The House of Commons Special Committee
on the Disabled and Handicapped made several recommendations with respect
to disabled voters.
17 April 1982 - The Canadian Charter of Rights and
Freedoms came into effect.
17 August 1983 - The British Columbia Supreme Court held
that casting a ballot under prison conditions did not deny the right to
vote and was demonstrably justified in a democracy (Jolivet).
25 May 1984 - The British Columbia Court of Appeal held
that a person on probation should not be denied the right to vote (Reynolds).
31 August 1984 ‑ The Federal Court of Appeal stated
that a full trial was necessary to decide whether denying prisoners the
right to vote was demonstrably justified, and refused to grant an interlocutory
mandatory injunction allowing the applicant prisoner to vote.
4 September 1984 ‑ First federal election after
section 3 came into effect.
October 1985 ‑ The Sub‑Committee on Equality
Rights of the Standing Committee on Justice and Legal Affairs recommended
in its report, Equality for All,that mentally disabled people have
the same right to be enumerated and to vote as all other Canadians.
10 June 1986 ‑ The Nova Scotia Supreme Court found
that the Nova Scotia Civil Service Act unnecessarily denied a public
service worker the right to stand as a candidate (Fraser).
5 January 1987 - The Nova Scotia Supreme Court found that
the legislature could not unreasonably limit the right of individuals to
stand for membership (MacLean).
7 November 1988 ‑ An Ontario High Court judge stated
that disqualifying an inmate from voting in a federal election is justified
under section 1, in light of the history and effect of the right to vote,
and the practice in other free and democratic societies (Sauvé).
18 November 1988 ‑ The Manitoba Court of Appeal
held that the disqualification of inmates from voting in a federal election
is justified under section 1 (Badger).
28 November 1988 ‑ Second federal election affected
by the Charter.
1988 - An Ontario High Court judge stated that disqualifying
inmates from voting in a provincial election cannot be justified, in part
because of voting’s rehabilitative potential (Grondin).
1988 ‑ A Federal Court judge held that the provisions
disqualifying persons from voting because of mental disease are too broad
to be justified by section 1 (Canadian Disability Rights Council).
18 April 1989 ‑ The British Columbia Supreme Court
held that relatively equal voting power is fundamental to the right to vote,
and electoral boundaries must reflect this fact (Dixon).
15 November 1989 ‑ The government appointed a five‑person
Royal Commission on Electoral Reform and Party Financing, chaired by Pierre
6 March 1991 ‑ The Saskatchewan Court of Appeal
ruled that the discrepancies in the size of voter populations in various
constituencies infringed section 3 of the Charter, as did the distinction
between urban and rural constituencies in the Electoral Boundaries Commission
6 June 1991 ‑ The Supreme Court of Canada reversed
the ruling of the Saskatchewan Court of Appeal, and found the Saskatchewan
constituency boundaries to be valid.
1991 ‑ The Supreme Court of Canada struck down the
legislative provision barring all political activity by public service workers
13 February 1992 ‑ The Royal Commission on Electoral
Reform and Party Financing tabled its report in the House of Commons.
14 February 1992 ‑ The House of Commons appointed
a special eight‑member committee to undertake a comprehensive review
of the Royal Commission’s report.
11 December 1992 ‑ The Special Committee on Electoral
Reform tabled its “phase one” report.
6 May 1993 ‑ Bill C‑114, which made amendments
to the Canada Elections Act, received Royal Assent.
19 April 1994 - The House of Commons adopted a motion
directing the Standing Committee on Procedure and House Affairs to study
and bring in a bill regarding electoral boundaries readjustment. The Committee’s
Fifty-first Report, containing draft legislation, was concurred in by the
House on 14 February 1995.
16 February 1995 - Bill C-69, the Electoral Boundaries
Readjustment Act, was tabled and received first reading in the House of
Commons. It was essentially the same as the bill that had been proposed
by the Standing Committee on Procedure and House Affairs in its report.
The bill was passed by the House, but the Senate proposed amendments, most
of which the House was not prepared to accept. The bill died on the Order
Paper when Parliament was prorogued on 2 February 1996.
2 February 1996 - Bill C-69 died on the Order Paper
when Parliament was prorogued.
October 1996 - Parliament enacted Bill C-243.
18 December 1996 - Bill C-63, which provided for the establishment
of a permanent Registry of Electors and revised hours of voting, received
June 1998 - Bill C-411, which made a number of technical
amendments to the Canada Elections Act, received Royal Assent.
1998 - The House of Commons Standing Committee on Procedure
and House Affairs tabled its Thirty-fifth Report containing recommendations
for legislative changes to the Canada Elections Act.
7 June 1999 - Bill C-83, a new Canada Elections Act,
was introduced and received first reading in the House of Commons. This
bill died on the Order Paper when the first session of the 36th
Parliament was prorogued.
14 October 1999 - Bill C-2, a new Canada Elections Act,
was introduced and received first reading in the House of Commons. It was
virtually identical to Bill C-83 in the previous session.
31 May 2000 - Bill C-2 received Royal Assent.
1 September 2000 - The new Canada Elections Act
(Bill C-2) is proclaimed in force by the Chief Electoral Officer.
14 June 2001 - Bill C-9 received Royal Assent.
This bill responds, in part, to the Figueroa decision.
Boyer, J. Patrick.
Political Rights: The Legal Framework of Elections
in Canada. Butterworths, Toronto, 1981 (p. 121).
Election Law in Canada: The Law and Procedure
of Federal, Provincial and Territorial Elections. Butterworths,
Hogg, Peter W. Constitutional Law of Canada, 2nd
ed. Carswell, Toronto, 1985.
Library of Parliament. “Elections in Canada,” Bibliography
Badger v. Attorney General of Manitoba (1986),
30 D.L.R. (4th) 108 (Man. Q.B.).
Badger v. Canada (Attorney General) (1988),
55 D.L.R. (4th) 177 (Man. C.A.), leave to appeal to S.C.C. refused, 57 D.L.R.
Barrette v. A.G. Canada (1994), 113 D.L.R.
(4th) 623 (Que. C.A.).
Belczowski v. Canada (1991), 90 D.L.R. (4th)
330 (F.C.T.D.);affirmed by the Federal Court of Appeal, 90 D.L.R. (4th)
330; affirmed by the Supreme Court of Canada,  2 S.C.R. 438.
Canadian Disability Rights Council v. Canada
(1988), 21 F.T.R. 268 (T.D.).
Craig v. New Brunswick (1992), 128 N.B.R.
(2d) 344 (Q.B.).
Dixon v. British Columbia (Attorney General)
(1989), 60 D.L.R. (4th) 445 (B.C.S.C.).
Figueroa v. Canada (Attorney General)
(2000), 189 D.L.R. (4th) 577; reversing (1999), 170 D.L.R. (4th) 647.
Grondin v. Ontario (Attorney General) (1988),
65 O.R. (2d) 427 (H.C.J.).
Haig v. Canada (1993), 105 D.L.R. (4th) 577
Harper v. Canada(A.G.),
 Alta. D. 300.30.00.00-01; C.R.D. 27.30.00-02.
Harvey v. New Brunswick (Attorney General)
(1996), 137 D.L.R. (4th) 142 (S.C.C.).
Jones v. Ontario (Attorney General); Rheaume
v. Ontario (Attorney General) (1992), 89 D.L.R. (4th) 11 (Ont. C.A.).
Jonson v. Ponoka #3 (County) (1988), 88 A.R.
31 (Alta. Q.B.).
Lavigne v. Ontario Public Service Employees Union,
 2 S.C.R. 211.
Levesque v. Attorney General of Canada (1985),
25 D.L.R. (4th) 184 (F.C.T.D.).
Libman v. Quebec (Attorney General), 
3 S.C.R. 569.
MacKay v. Manitoba,  2 S.C.R. 357.
MacKinnon v. Prince Edward Island (1993),
101 D.L.R. (4th) 362 (P.E.I.S.C.).
MacLean v. Attorney General of Nova Scotia
(1987), 35 D.L.R. (4th) 306 (N.S.S.C.).
Muldoon v. Canada,  3 F.C. 628 (T.D.).
National Citizens Coalition Inc. v. A.G. Canada
(1984), 11 D.L.R. (4th) 481 (Alta. Q.B.).
O.P.S.E.U. v. Ontario (Attorney General)
(1988), 52 D.L.R. (4th) 701 (Ont. H.C.J.).
Osborne v. Canada (Treasury Board), 
2 S.C.R. 70.
Paul v. Manitoba (Chief Electoral Officer)
(1990), 72 D.L.R. (4th) 396 (Man. Q.B.).
Re Allman and Commissioner of the Northwest Territories
(1983), 144 D.L.R. (3d) 467 (Ont. S.C.).
Re Attorney General of Canada and Gould (1984),
13 D.L.R. (4th) 485 (F.C.A.); affirmed  2 S.C.R. 124.
Re Fraser and Attorney General of Nova Scotia (1986),
30 D.L.R. (4th) 340 (N.S.S.C.).
Re Hooqbruin and Attorney General of British Columbia
(1985), 24 D.L.R. (4th) 718 (B.C.C.A.).
Re Jolivet and Barker and The Queen and Solicitor General
of Canada (1983), 1 D.L.R. (4th) 604 (B.C.S.C.).
Re Maltby and the Attorney General of Saskatchewan
(1982), 143 D.L.R. (3d) 649 (Sask. Q.B.).
Re Reynolds and Attorney General of British Columbia
(1982), 143 D.L.R. (3d) 365 (B.C.S.C.); affirmed by B.C. Court of Appeal
, 11 D.L.R. (4th) 380.
Re Scott and Attorney General of British Columbia
(1986), 29 D.L.R. (4th) 545 (B.C.S.C.).
Re Storey and Zazelenchuck (1984), 36 Sask. R. 103
Re Weremchuk and Jacobsen (1986), 35 D.L.R. (4th)
Reference Re Electoral Boundaries Commission Act
(Alberta) (1991), 84 D.L.R. (4th) 447 (Alta. C.A.).
Reference Re Electoral Divisions Statutes Amendment
Act, 1993 (Alta.) (1994), 119 D.L.R. (4th) 1 (Alta. C.A.).
Reference Re Provincial Electoral Boundaries (Sask.),
 2 S.C.R. 158.
Reference Re Yukon Election Residency Requirements,
 4 W.W.R. 79 (Y.T.C.A.).
Reform Party of Canada v. Canada (Attorney General)
(1995), 123 D.L.R. (4th) 366.
Sauvé v. Canada (Attorney General) (1992),
89 D.L.R. (4th) 644 (O.C.A.), overturning (1988), 53 D.L.R. (4th) 595
(H.C.J.); affirmed by the Supreme Court of Canada,  2 S.C.R.
Sauvé v. Canada (Chief Electoral Officer)
(1999), 180 D.L.R. (4th) 385;  2 F.C. 117.
Somerville v. Canada (Attorney-General) (1996),
136 D.L.R. (4th) 205 (Alta C.A.).
Thomson Newspapers Co. v. Canada (Attorney General),
 1 S.C.R. 877, 159 D.L.R. (4th) 385 1 (S.C.C.).
* The original
version of this Current Issue Review was published in September 1990;
the paper has been regularly updated since that time.
** For general
background, see James Robertson, The Canadian Electoral System,
Background Paper BP 437, Parliamentary Research Branch, Library
of Parliament, March 1997.